Question:
I appreciate the effort. You mentioned something a few minutes ago about leveling the playing field and you can talk more generally now. You don't have to stick with the Olympic case. How did you handle situations or how did you level an unequal playing field?

Answer:
I don't necessarily view that as my role every time. There may be times when I don't consider that to be a significant factor but if I want to try and level it and I think that's something that a mediator should be doing in this particular case, then there's a number of ways you can do that. One of the ways you can do just that is you can communicate nonverbally your support for the person who is on the low end of the playing field. There are a number of little tricks you or things that you can do like the use of body language to send a message that will indicate something to someone. It creates the appearance that I'm on this person's side and I'm here to help them, so you're not just dealing with that guy now your dealing with maybe two.

Question:
For example, non-verbal?

Answer:
Oh, moving physically closer to the person, having eye contact with them but not with the other person. Not that I don't want to look at them, not that I'm afraid to look at them because they are not important enough to look at. Anytime you start doing these body language things, you have to know what the hell you're doing. You have to be able to do this, but you learn to do that. By using pitch and inflection, you know sort of like talking more calmly and rationally and an even tone to the person you're trying to help. More aggressive and louder with the person, you are trying not to help. You know, there are all kinds of things you can do by using body language, and even by using tonality and inflection and those kinds of things. Another thing you can do in terms of leveling the playing field is to do some caucusing. You have to be very careful here that you don't screw up the neutrality of the way you're doing this, but what you do is try and direct the person who hasn't made it up to the level of the field, try to get them thinking in terms of how they can improve their position. You might recommend that they read something or they do something, or that they check into something. You don't tell them to do it, you just say this is something you might want to think about. It's usually best to do that by throwing out something else also, here's another option that you might want to consider. So, you're not telling them here's one thing to consider, you're telling them, here's 2 or 3 things to consider, so that there's options on the table. But you use the caucus period to point that person in the direction that's going to help them. When you caucus with the other side you know you're doing something that's not the exact opposite but what you do is you try to get them to lighten up a little bit. Or you can let them know in a subtle or maybe not so subtle ways that you know what's going on, and as a mediator because you're neutral you may not be able to do anything about it directly but I want you to know that I know kind of thing. The playing field doesn't necessarily have to be completely level, it's just the system, the process works better when it's level, and generally speaking I feel better about what's going on when it's relatively level. When it's relatively level then if somebody hurts themselves in the process, it doesn't bother me as much because they were both about the same level, and if they screwed up, I can't do everything all the time, but it should be a level playing field.

Question:
So you said that when you see a large discrepancy in the power you feel the need to sort of level the field, as level as it can be, that's relatively speaking, but what are those specific things that you're looking for that tells you that this group is not on the same level?

Answer:
Well, I don't know what to say here, as reluctant as I might be to make assumptions, I think you can generally assume a community group that's not really associated with a national organization. They're working at a hindrance when they're dealing with officials who have tax dollars, and all the time in the world because that's their job. The officials have access to data, and very likely although not exclusively, but very likely they are better educated. They just gain common sense, it just kind of tells you that officials are in a better position than our community leaders. Now if you're talking about a NAACP even though that chapter might be unsophisticated. When you're coming out of rural Arkansas, you know, they're not that well educated, they just don't have the sophistication level, because they've never had the opportunity that the mayor, the chief of police and all these people have. But what they do have is their organization, so they can bring in the legal defense plan. Even though that young group there is unsophisticated and may not be at the same level, they have a support mechanism they can bring people that were not on their level of playing field, and bring them up to power.

Question:
So in those cases did you sit back and let the community group access their resources and work with the flow?

Answer:
I may be different than a lot of people, but here is how I view some of the stuff. I take a very clear view that if you're going to raise an issue, then you need to know what you're talking about. If all you have is a high school education and the mayor's got a law degree, that doesn't necessarily make the playing field uneven. But, if you're a community organization or a community group, if you're going to raise an issue then you better have done your homework. My job as a mediator is not to do your homework, or do your work for you. My role is very simple, I'm just here to help you try and figure out what the answer is, I'm not going to come up with the answer, I'm just going to help you figure out how to do it. I expect if people want to raise an issue, then they're prepared to raise it and defend it. So, generally speaking I don't feel a great need to level the playing field. When I feel the need to level the playing field is when clearly I'll just stick with the example of obsidian community organizations. Clearly the city is acting in appropriate ways, that's not my job, my job is not to let that guide me because that takes me out of my usual stance, but I'm not stupid, I can see the writing on the piece of paper.

Question:
QUESTION UNKNOWN

Question:
Now this conversation sounds to me very much as if you are manipulating the process. You said over and over again, "I'm not neutral." Are you impartial?

Answer:
Yes. I'm not going to let anybody yell at anybody, I'm not going to let anybody get out of line, I'm not going to let anybody intimidate anyone else. I'm there to help them solve their problems.

Question:
What if they develop an agreement which you consider to be unfair?

Answer:
Tough.

Question:
Tough to you, or tough to them?

Answer:
Tough to me. They're not there to do what I want them to do. I'm there to help them, I work for them. They don't work for me. But there are times when mediation is going to fall apart and there are times when you don't mediate. That's what I was talking about regarding ethics. Nobody talks about that anymore. Sometimes mediation doesn't make sense. Sometimes it shouldn't be done.

Question:
When is that?

Answer:
With table mediation, not problem solving, but table mediation, you need some degree of equality between the sides. That didn't exist in this situation, because you had a strong group on one side and a weak group on the other side. When that happens, you're not going to come out with an agreement. But I was the leveler. The Indian group was not equal to the other group, but I made it happen.

Question:
You made what happen, you equalized the power?

Answer:
Yeah, I equalized it.

Question:
Ok, that's another question that I want to get to.

Answer:
So the two groups have to be fairly equal. And both groups have to be ready. Secondly, the groups have to be in a position so they can make decisions. It can't be "we'll make a decision, and I'll go back, and the city council will have to vote on it," and that kind of stuff. And that's where it gets tricky. You can't get the whole city council there, so what you have to do is get an informal agreement. You have to get the mayor or the head of the city council, the person who can really swing that city council. It has to be pretty much an informal agreement that the city council is going to go with. You have to have the power of the people at the table. Then you have to have a commitment that they will participate. I got a commitment that we would go for three full days. That's what I said we were going to do. Because I don't believe in stop and go mediation in that kind of situation. We'd never get to it. So the police chief, the mayor, the Indians, everybody committed three full days, including me.

Question:
And the city council committed that whatever the group came up with, they'd go with it?

Answer:
It wasn't the city council, it was the head of the law enforcement agencies. The sheriff didn't have to go to county court, he could speak for himself. The police chief really runs his own department. The city council wasn't a factor here. It was how the police department was operating.

Question:
In other cases if there is a decision made, and they operate according to votes, do you get them to agree to abide by the decision, whatever it is?

Answer:
Well, they can't do that legally, but that's why I said informally, and that makes it trickier. But you've got the police chief there and you figure the police chief is talking to the city council. They're being kept informed as to what is going on. If, during the mediation, for example, money issues came up, like who pays for this full time Indian person? The sheriff couldn't commit the county. The county had to vote for the money, but if there was agreement, they would go to the county and ask for the money. There was informal agreement that the county was going to provide the money. Formally could the county provide the money? No. But informally there was an agreement.

Question:
Let me go back to this issue of having the parties in equal power.

Answer:
The other side is the community. In the community you have to have people at the table who really represent the community. Not the whole community, but represent somebody. So you have to have legitimate people there at the table.

Question:
And how do you determine who's legitimate?

Answer:
They determine that.

Question:
What if the people at the table are not the right people?

Answer:
They have to be the people in power. They are the people who are complaining. But they have to represent something. It can't be individual cases of malcontents. The woman at the table in the wheelchair was the actual chief of the Indian tribe. She was elected, so automatically she's at the table. Now does she represent every single Indian? Hell no. The Indians are split ten different ways, that's one of the huge problems in the Indian community, they are so badly split.

Question:
So do you need to get a representative of each of those factions at the table?

Answer:
No.

Question:
What do you do if one of the break-off factions doesn't want to go along with the agreement?

Answer:
That happens, I've had that happen, they don't go along.

Question:
Ok, and you don't try to get them in the fold?

Answer:
Yeah, you do, but if they won't come in, they won't come in. That's very common, when there's money involved in the settlement, you have a lot of splits. It's a poor community. The poor community had more splits in it because people are fighting over money.

Question:
Ok, let's go back to the idea that you need people of equal power at the table. But in race situations, minority situations, you rarely have people of equal power.

Answer:
That's correct, that's why we were so important. That's why us being the U.S. Justice Department was very important. Once people came to the table, we make the situation legitimate.

Question:
And what effect did that have on what's going on?

Answer:
It makes everything official. We're the federal government. It brings the ultimate threat of a civil rights complaint.

Question:
So in that regard, it helped you?

Answer:
Sure. Remember now, we're set up as an alternative to legal action. When we get an agreement, with the court, it's a consent decree. You want to get into thousands of hours of paying lawyers? You want to get into a civil rights complaint that's going to go on for years, particularly if there are things wrong?

Question:
Were you explicit about making that threat?

Answer:
I don't threaten people. Do I remind people of this? I might, but not in public. Of course, I remind people. It was difficult to get people to the table.

Question:
So what else do you do to empower the low power group?

Question:
When you perceived that there might be a significant power imbalance between the parties in this case, how did you intervene?

Question:
So how do you deal with the notion that -- again, this is another thing taken out of the literature -- that in order to be successful in mediation, the parties have to be of relatively equal power. So what’s commonly done is mediators will work to empower the low-power group, and I’m hearing you say that you do that to a degree, but that can then cause problems with the other side.

Answer:
Well, it happens in the very beginning. Typically the way that happens in CRS and most other kinds of mediation where there’s this huge dis-equilibrium of power – and the same thing can happen in organizations, for example – is that you do your power-balancing in the beginning of the process. Let’s sort of walk through a typical process: you come into a community, you meet with the leadership in the community, then you meet with the so-called establishment side, the local officials, the business people, and the first thing they say to you is, "So who have you met with on the community side?” and so you say, "Well, I’ve met with so and so." They say, "Ah. A, B, and C is fine, but D and E.....those guys or those people -- known troublemakers, can’t have them involved in the process.” So right from the very beginning, there’s an attempt, even before you’ve gotten into the formal sessions, to discredit people who, in fact, could be the people who could redress the balance of power in a setting, because they know they don’t want those people there. They don’t want the balance of power. So I think the job of the conciliator or the intervener, just to think of a more neutral term, speaking of neutrality, is to convince the powers-that-be that if they really want this to be a successful outcome, without defining what success is at this point -- because you don’t want to do that -- then they need to be here. "You need to allow us to do our work, to make sure that the discussions stay on an even keel. We can’t promise you that there won’t be some explosions from time to time, but you know, you’re going to have to be prepared to deal with some of this if it happens." So, there was that aspect of it, right from the very beginning. And then, running throughout most interventions, you could say that at the beginning, but there would be these kinds of recidivist fall-backs to the same kind of attempt to slowly disempower people that they didn’t want to be at the table. Either in this particular forum, or others. Something that we don’t give enough credit to in general, is that parties in disputes or conflicts are pretty sophisticated. We think they look only at these particular issues, but in many cases, people in communities are thinking about, "What are the implications of this as an outcome for future relationships?” And read into that, "future power relationships.” So if they’re successful in this issue, we know that coming up next year there’ll be a bond issue about such-and-such. So they’re looking way down the line, in some cases much further than the mediator is. They’re looking at externalities that the mediator is not even seeing. So I think that the mediator then has to be able to constantly work to be able to do that. There are several techniques that the mediator, or the intervener, has with which to empower the low-power party. I think that the idea that CRS came in – if not explicitly, then certainly implicitly – to redress the power was certainly known by everyone. But the very fact that parties were being brought to the table, metaphorically and literally, was in fact a kind of equalizing of the power. Jim Laue had an expression, as a tap-dance around this issue of advocacy, by saying that he was "an advocate for the process”, remember that? Well, if you strip away the veneer, you see what he’s really saying. He’s an advocate for social change. If the process is going to bring about social change, then there’s the connection.....

Question:
How did this play with the white communities? Did it generally work?

Question:
Interesting. So, let’s go back to the CRS arena now: There’s plenty of times where the white power structure is middle-class, and the minority community presumably isn’t. What do you do then, in terms of process?

Answer:
Well, it isn’t clear to me how that necessarily changes the process.

Question:
In terms of what model you use, you said that class really matters....

Answer:
Yeah, well I think that class matters from the standpoint of conceptualization of process. It may mean that you have to use some kind of a hybrid in a sense, or -- I talked about this a few moments ago, but this was a prison mediation I did many years ago in Monroe prison, which was, and still is, a medium-security prison right outside of Seattle. Conflict over minority inmates feeling that they weren’t getting their fair share of resources in comparison to white inmates who had done the same crime, and were serving the same kind of sentences. There were a couple of riots there. So, my recognition was that we were dealing with a very sophisticated warden -- white warden -- and his staff, who had been to the table in various kinds of fora and were used to the patterns of negotiation. And an inmate community, mainly inmates of color, who had not had that experience. So what I did was, I said to him, "We can’t go into mediation with this kind of imbalance. Just my few questions and meeting with the inmates’ side tells me that they know very little about negotiations, and I think if you’re really interested in this being successful, you’ll let me do at least a day of negotiations skills training with them first,” which is what I did. So one way that you can do this is to create a distinction in the process at the beginning, by being very transparent on what needs to be done, and with the white side say, "Look, if you’re concerned that I’m going to be involved in some sort of sedition-like sort of behavior, or that I’m going to be instructing them in terms of what to do, that’ll become clear enough in the actual process, and you can always end it if you don’t care for it.” So that’s one way of dealing with it, to sort of recognize the disparities and address them up-front, which is what I would prefer to do, rather than to simply go into it, then figure out once you’re into it how you’re going to redress the balance.

Question:
Okay. How much direction do you give to minority communities, or how much assistance would you give them in terms of identifying their issues, prioritizing their issues for them?

Answer:
In caucus, the risk is you get into more of an evaluative procedure with the minority side, comparatively less so with the white side. The risk is that the evaluation will become known in the joint sessions and then there you are, blown out of the water. Again, my experience – I don’t know what other CRS people have done, but my own experience then, and still is – is to be very transparent about this and say, in effect, to both sides, "Now I sense that there’s a need....” Particularly what happens is that there’s a frustration on the part of the establishment’s side in the process, and it allows you to say, "What I think is happening here is that the minority side doesn’t really have a good sense as to how to organize the issues. I think I need to spend some time with them to be able to do that. Would you let me do that?” So when you’re meeting with the minority side in caucuses, it’s much more than an evaluative procedure. I mean, think about this: "What are the consequences of taking this action now?” Now eventually, that gets evened-out, my sense is, by doing it jointly so as you get closer to the actual agreement. Then you’re sitting there with both sides and you’re doing much more of an evaluative procedure toward the end than you were in the beginning, because people trust you. I think that I have much more comfort -- by the way, it doesn’t matter if it’s mediation; I could be doing a problem-solving workshop -- as a facilitator starting out in a much more clearly-defined position of neutrality -- neutral in the sense of being neutral and non-evaluative, and then becoming increasingly so as trust is built up between the parties and as trust is built up with me. So by the time we get to the point of people getting ready to sign off on an agreement of some sort, you’re fully-prepared then to say, "Well first of all, let me tell you my own experience,” and I’ll go into some experience, and I’ll say, "Let me give you a perspective about this from another point of view.......you can do this, but here’s another possibility......here are some resources you can look at if you want to go beyond me, in a sense....”

Question:
But you wouldn’t do that up-front in caucus?

Question:
Did you ever tell the administration or the authorities that you're going to be working with the minority group and then they thought that would make the minority group even more powerful, so maybe they'd better get you working with them too?

Question:
What about power being a factor? Do you have to provide some way where they can maintain power? We sometimes talk about the difference between 'power with' and 'power over.' Is there any way to have power with instead of power over?

Question:
Did you do anything else to deal with power disparities between groups?

Answer:
This was something that I used to talk about with all the parties. The CRS mediator became the fulcrum on this power beam, and I may need to move toward one group or another to keep the balance. We used pre-mediation for coaching and guiding, so as to make it productive when we did get together. This way, we had some substance there and not just emotions. I don't ever want people to think I'm diminishing their emotions. Those are a significant part of it and they need to be shared. But, if you're going to create systemic change, you have to go beyond that. You need to determine where those emotions are coming from and what systems can be managed or changed in order to create positive emotions. I may need to move closer to one group or the other, but that's why I'm doing it. The only danger is if you don't let everybody know that you're doing it, then one group hears about it, and thinks that you're advocating or becoming aligned with that group. You have to be real careful that the group doesn't perceive you as an advocate, but that they know you're coaching and helping for the purpose of everybody. You're offering that same level of service wherever it's needed. In the mediation, it's the matter of using titles, agreeing that we won't use titles, or if we do, then everyone is addressed with a Mr. or Ms. We're not using Dr. and Chief. We don't say Chief Williams and then Joe. We're going to use Mr. Williams and Mr. Smith. That nuance says to Joe that the mediator is honoring him and around this table we're all Mr. or Ms. Either that, or we all use first names, which is the preference. There's some dance with that. If there's somebody that's a revered community person, we just couldn't call them anything but reverend or brother, so then you honor that and you don't violate the honor of the group. But at least there's some acknowledgment that we're on the same playing field. In the context of the discussions, we need to keep people safe. If one or the other starts taking somebody on, then you stop that. You say, "remember we're talking about how you feel." If you let one of them diminish or take the other one on, then the environment is not safe anymore. Once the group realizes that you are going to manage that, then they feel safe and they respond to it. That's power. If you let one party overpower the others, you can't have mediation. That technique was part of it. It was again a delicate balance because you as the mediator can't put anybody down either. And that's where the ground rules come in. I establish ground rules, like we diminish no one, everyone's opinion is respected, no name calling, no use of profanity. Then whatever those ground rules are, when someone violates that and starts cussing at Joe, I can say, "Susie, remember you agreed that you wouldn't use profanity, you agreed that you wouldn't call names, and I'm going to have to ask you to honor that." I'm not the bad person, or the parent. I'm the one that reminds them of what they've agreed to and it feels a whole lot different then if I'm going around and pointing fingers. If that doesn't work, then I caucus with them. If a caucus doesn't work, I ask the other party if they want to continue but I won't allow it to get out of hand. I think I've violated the confidence that people had that I was going to keep it safe. Police chiefs seem to be especially concerned about it. They don't want to come to some meeting and let people chew them up and my assurance to them is I'm not going to let that happen. People may vent their feelings or their frustrations and they need to do that, but it won't be personal. But if I violated that then I violated my trust. Those were the kinds of steps that I used to honor that. The most important thing is that they buy into some behavioral ground rules that I can call them back to.

Question:
Do you suggest these ground rules before you start or do you develop them with the parties?

Answer:
There were different kinds of power. white public opinion would have been a factor in the background of the landowners, and I'm sure that the Native Americans, the tribal leaders, were very much aware of that. One of the things they were concerned about was what Congress would ultimately do.

Question:
The tribal leaders?

Answer:
Yes. Not in this particular case, but I think in Indian country, in general. Treaties can be changed by Congressional action. The courts can give definition to treaties and that sort of thing, I think the thing in the background that's rarely articulated is this fear of what Congress will do about, in this case, these kinds of treaty rights and private property rights. Therefore, white public opinion, once this is all out in the open arena, could generate a lot of feelings.

Question:
So does that threat influence the Native Americans to not push as hard?

Answer:
Well, you've got several elements here. Publicity and public opinion are factors. Say the police did not deal fairly, there is always the possibility of publicity around their decisions that would make them look bad if they did this. That's outside the room of course. There are always potential pressure points that the minority community can use if they so chose that would make for potential build-up of their negotiating position, such as in the Portland case I mentioned. They were up against a very strong rigid position yet they were able to change that position. That kind of potential is always out there if it's resorted to and usually does not reflect well on say the institution that is involved.

Question:
Do you ever encourage the minority party to do that kind of power building, or do you kind of leave it up to them to decide when they need to do it?

Question:
It sounded like you took the interest of the parties.

Answer:
Yeah.

Question:
And the interest of the city, which is what a mediator would do?

Answer:
First thing you understand is that there are limitations. No matter what you do, you're not going to get around that. You learn that you don't go around telling anybody what you are going to do, especially in prisons. There's hostility enough as it is, and hostility runs out just by the warden saying, "I'll show you who's in charge. You may come in here and be the civil rights person, but I run this prison." Understanding that, you try to sit down with the warden and determine as to whether or not you can get some nice things going like soap, showers at certain times and some of the minimums.

Question:
So by asking for a compromise from the majority group, was that your way of leveling the playing field and sort of reducing the disparity in the power?

Answer:
No. We didn't deal with the issue of disparity in the power. I knew that they were convicted criminals, and committed murderers. I'm said, "We are going to work on this and see if we can get some favors for them."

Question:
What about a less extreme place where you've got a racial minority group, perhaps the case we were talking about originally.

Answer:
That's different, and so you act differently.

Question:
Do you try to do anything to build capacity in the low power group or empower the low power group?

Answer:
Yes. Well you don't really go in trying to empower a particular group. You may unwittingly go in and say, "Hey, look, this is what's going on and here's a way that you can be better off," if that's perceived as empowering. You want to teach and you want to provide knowledge if you can. So in some instances, that would be empowering. You have to remember that some prisons are not going to allow you in there -- especially Federal prisons because they're on the same level that you are, the Department of Justice. If they don't want to see you in their prison, they're not going to let you in there. Other times, I wasn't allowed into Bureau prisons.

Question:
So when you did empowerment on various levels, how was your work affected by issues of neutrality, impartiality, and objectivity? Were those things that were at the forefront when you did this?

Answer:
Yeah, one of the things that made it work could have been more difficult if the Vice President for Student Affairs was not so committed to what we were trying to do. He didn't know exactly what to do, but he was in, he was there all the way. Once we sold the President and he bought into it, he was free then to do what he wanted to do, and knew it was the right thing to do, but he knew he couldn't do that without support. So, it really made that part of it easy. Again, the next hurdle was the faculty and the faculty's perception of potentially losing some power or influence. But they did come around and there was faculty representation from the general faculty and also from minority groups within the faculty on the task force.

Question:
Now how did you bring them around?

Question:
We talked yesterday about the theory we developed, based on talks with a lot of people, about what we call intractable or resolution-resistant conflicts. We came to the conclusion that conflicts were more resolution resistant if they involved very high stakes and distributional kinds of questions. They were also more resistant if they involved fundamental moral differences, or what we call domination conflicts, pecking order conflicts, or identity conflicts. All of these tend to be involved in race issues. I threw this out at you yesterday, and you said that the factor we hadn't been thinking about was the need for relationship. If there was a need for relationship between people, then they would be willing to negotiate on those things. Are there other factors we're not thinking about?

Answer:
Another factor is the party’s or the individual's ability to look beyond their current power position. If they can't perceive themselves in an honorable way, beyond this entrenched position, then the issue's not negotiable. That's why I always ask, "What is in your interest?" If I can't help them identify an interest that serves their needs beyond this entrenched position, it won't work. I can explain to them, "You have the power to direct authoritarian decision making on this plan, but what is it getting you? What might happen if you're willing to move in a different direction? Is it worth that?" If they say it's not worth that, then I'll tell these people what to do. If they don't do that, they're out of here, they're not going to negotiate. Again, at that point, I'm not looking for them to understand the other party's interest. I'm looking for something to catch their interest. So if they're so entrenched that they can't see hope of personal interest served -- beyond this entrenched position -- they're not going to move out of it. That's when I would say, "Call me."

Question:
You mean if they change their mind?

Answer:
Yes. I think one of my propensities was to keep moving beyond their real interest. They would have to be really overt to me and say, "Go away." As long as they just danced around it and kept the door open, I just kept moving forward. Generally that worked out, although sometimes they slammed the door. I think that's one of the skills of the mediator, to understand whether or not it's mediatable. If you can’t help that party see beyond the entrenched position, then it's not going to be mediated. I use it in the 40 hour mediation class. For example, one of the barriers may be authority. It's a big rock. Here's the mediator, they're the fulcrum underneath this lever. As the mediator, I'm trying to get this party off of its entrenched position in order to see the benefits of the mediation. If I can't come up with something to put on the other side, then it won't level out and it's not going to work.

Answer:
We call it balancing the table so that the table is even and there is recognition about the power and the stature of the parties. Up until then, there was no such recognition. The organizations, individually, did have a lot of history, but collectively, the groups had never come together. I don't believe they had never thought that there might be strength in coming together on this particular issue.

Question:
The key thing that gave them power was bringing them together?